Citation Nr: 1519571
Decision Date: 05/07/15 Archive Date: 05/19/15
DOCKET NO. 10-38 563 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina
THE ISSUES
1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertensive cardiomyopathy (previously claimed as a heart condition).
2. Entitlement to service connection for hypertensive cardiomyopathy, to include as secondary to service-connected equilibrium dysfunction.
3. Entitlement to a compensable rating for bilateral tinea pedis and onychomycosis of the feet.
4. Entitlement to service connection for tinnitus, to include as secondary to service-connected equilibrium dysfunction.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
A. Hodzic, Associate Counsel
INTRODUCTION
The Veteran, who is the appellant in this case, had active military service from August 1973 to August 1977.
These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the claim to reopen entitlement to service connection for congestive heart failure (previously claimed as a heart condition). The Veteran appealed the denial of this claim in this decision, and the matter is now before the Board.
In a January 2011 statement, the Veteran withdrew his request for a Board hearing. Thus, the Board hearing is deemed withdrawn. 38 C.F.R. § 20.702(e) (2014).
The issues of entitlement to a compensable rating for bilateral tinea pedis and onychomycosis of the feet and entitlement to service connection for tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. By a December 2004 decision, the RO in denied the Veteran's claim of entitlement to service connection for a heart condition. The Veteran withdrew his appeal of this decision in a September 2006 statement.
2. Evidence received since the December 2004 decision relates to previously unestablished facts necessary to substantiate the service connection claim for hypertensive cardiomyopathy.
3. The Veteran did not sustain a disease or injury related to hypertensive cardiomyopathy in service, and this disorder did not become manifest to a degree of 10 percent or more within one year of separation from service.
4. Hypertensive cardiomyopathy is not etiologically related to service or a service-connected disease or injury, and it was not aggravated by a service-connected disease or injury.
CONCLUSIONS OF LAW
1. The December 2004 decision that denied the Veteran's claim of entitlement to service connection for a heart condition is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.204, 20.302, 20.1103 (2014).
2. New and material evidence has been received since the December 2004 decision to reopen the Veteran's claim of entitlement to service connection for hypertensive cardiomyopathy (previously claimed as a heart condition). 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2014).
3. Hypertensive cardiomyopathy was not incurred in service, may not be presumed to have been incurred therein, and is not proximately caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran is seeking to reopen a previously denied claim of service connection for hypertensive cardiomyopathy (previously claimed as a heart condition). Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C.A. § 7105. However, pursuant to 38 U.S.C.A. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim.
New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed, unless it is inherently false or untrue. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992).
The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118.
The RO denied the Veteran's claim of entitlement to service connection for a heart condition in a December 2004 statement of the case (SOC). The RO reasoned that service connection was not warranted because the evidence did not show that the Veteran's heart condition was incurred or aggravated during service or during the allowable presumptive period. Moreover, while the Veteran contended that his heart condition was secondary to his hypertension, the RO determined that the Veteran's hypertension was not service-connected, and thus, his heart condition could not be service connected as secondary to his hypertension. The Veteran filed a timely substantive appeal (VA Form 9) in January 2005. However, he submitted a statement in September 2006 wishing to withdraw his heart condition claim. See 38 C.F.R. § 20.204. Thus, the Board finds that the December 2004 decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103.
Since that time, the Veteran has submitted medical and lay evidence, including numerous VA treatment records indicating that he has a diagnosis of hypertensive cardiomyopathy and lay statements contending that his hypertensive cardiomyopathy disorder is secondary to his service-connected equilibrium dysfunction. Moreover, a December 2009 QTC Medical Services examination, which relates to the nexus requirement of service connection, has been associated with the claims file. Thus, the Board determines that this new medical and lay evidence suffices as evidence of previously unestablished facts necessary to substantiate the service connection claim for hypertensive cardiomyopathy (previously claimed as a heart condition), and therefore, this claim for entitlement to service connection is reopened.
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).
Furthermore, service connection can be established through application of statutory presumptions, including for chronic diseases like cardiovascular-renal disease, including hypertension, when manifested to a compensable degree within a year of separation from service. 38 U.S.C.A. §§ 1101, 1137; 38 C.F.R. §§ 3.307, 3.309.
In determining whether service connection is warranted for a disorder, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Initially, the Board notes that the claims file contains numerous medical records that currently diagnose the Veteran with hypertensive cardiomyopathy, which he controls through medication. Thus, the only questions to be answered are whether this disorder was incurred in service or the applicable period thereafter, and whether there is a causal relationship between his present diagnosis and service or service-connected disabilities.
The Veteran has also alleged that this this disorder is related to his time in service due to Agent Orange exposure. His certificate of release or discharge from active service (DD-214) does not show that he served in Vietnam. See 38 C.F.R. § 3.307(a)(6)(iii). Moreover, while it is true that certain diseases associated with exposure to certain herbicide agents used in support of military operations in Vietnam during the Vietnam era will be considered to have been incurred in service and service connection will be presumed, this presumption only applies to disorders which the Secretary of VA determines to be the result of in-service exposure to herbicides, such as Agent Orange. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). However, cardiomyopathy has not been associated with exposure to herbicides for the purpose of presumptive service connection and it is not among the diseases listed in 38 C.F.R. § 3.309(e). Thus, the presumption does not apply to the Veteran's present service connection claim.
The lack of this presumption does not preclude the Veteran from arguing, or the Board from considering, whether his cardiomyopathy is related to his Agent Orange exposure on a direct basis. See Combee, 34 F. 3d 1039 (Radiation Compensation Act does not preclude veteran from establishing service connection with proof of actual direct causation); see also Brock v. Brown, 10 Vet. App. 155 (1997). In a May 2005 statement in support of his claim, the Veteran alleged that he was directly exposed to Agent Orange when he was onboard ships that contained various equipment that had come from the Republic of Vietnam. In response to this contention, the RO submitted several requests to the Joint Services Records Research Center (JSRRC) asking for documentation of the Veteran's exposure to tactical herbicides. In an October 2009 response, the JSRRC replied that it had no records of exposure to herbicides for the Veteran. Moreover, in a May 2009 statement, the JSRRC replied that in the course of its research efforts, it had not found evidence that indicated that Navy or Coast Guard ships transported tactical herbicides from the United States to the Republic of Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides. Thus, the Board must conclude that the Veteran was not exposed to tactical herbicides during active military service.
Nevertheless, the Board must also consider entitlement to service connection on alternative bases. See Combee, 34 F.3d at 1043. In this regard, hypertensive cardiomyopathy is considered a chronic disease under 38 C.F.R. § 3.303(b), as it falls under the umbrella term of cardiovascular-renal disease.
Under 38 C.F.R. § 3.303(b), if a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word "chronic" will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. When the fact of chronicity in service (or during the presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative route to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
The Veteran's service treatment records do not show complaints of or treatment for hypertensive cardiomyopathy. The evidence does not even show hypertension in service. Rather, it shows that the Veteran's blood pressure was 118 systolic and 78 diastolic on his August 1973 induction examination, 118 systolic and 72 diastolic on a January 1974 treatment record, 124 systolic and 72 diastolic on a June 1974 treatment record, and 126 systolic and 70 diastolic on his August 1977 separation examination. The Board notes that one undated treatment record from service does show elevated blood pressure readings of 156 systolic and 86 diastolic, and 178 systolic and 84 diastolic; however, this same document also notes that the Veteran's three-day blood pressure was within normal limits. Apart from this one undated record, which showed elevated blood pressure but not a diagnosis of hypertension, the Veteran's service treatment records note normal heart symptoms, including blood pressure readings, and lack of complaints related to his heart.
Moreover, the record does not show that any heart-related disorder manifested within one year from separation from military service because the claims file does not contain complaints of, or treatment for, heart-related symptoms during this time. Furthermore, the Veteran was afforded a VA examination in April 1982 in connection with his claim for service connection for a skin condition of the feet. During this examination, the Veteran's cardiovascular system was noted as normal. In fact, the earliest records indicating treatment for heart-related complaints come in the form of VA treatment records from 2002. The Board acknowledges the medical records which document a history of strokes, with the first stroke occurring in 1996. The Board further notes that the Veteran contended in a December 2003 VA primary care provider note that his hypertension was borderline in the military and that it onset in 1977; however, the Board also notes that the VA physician indicated that no symptoms of hypertension were noted in the routine physical examination in the military.
Additionally, the Board acknowledges the Veteran's lay statements, such as the May 2005 statement located in a VA Form 9, where he contended that his blood pressure and heart condition were related to, and began in, service. After considering the Veteran's lay statements, the lack of complaints for heart-related symptoms in service, the lack of a hypertension diagnosis and notation of blood pressure readings that did not show hypertension in service, and the many years from separation from service until he sought treatment for hypertension, the Board concludes that he did sustain a disease or injury related to hypertensive cardiomyopathy in service, and this disorder did not become manifest to a degree of 10 percent or more within one year of separation from service. Although another plausible explanation is what the Veteran provided in several lay statements, i.e., that his current heart disorder is related to his time in the military service, the Board has determined that its conclusion is more in keeping with the record as a whole.
Nonetheless, the Veteran has also contended that he is entitled to service connection for hypertensive cardiomyopathy on a secondary basis due to his service-connected disabilities. Specifically, the Veteran has claimed that his hypertension was caused or aggravated by his service-connected equilibrium dysfunction, claimed as dizzy spells, which is rated as 30 percent disabling. The Board notes that the Veteran is also service-connected for headaches and bilateral tinea pedis and onychomycosis of the feet, which carry noncompensable ratings.
Except as provided in 38 C.F.R. § 3.300(c), a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). This includes any increase in disability (aggravation) that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(b). Establishing service connection on a secondary basis requires (1) medical evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Thus, in this case, in order to warrant service connection for hypertensive cardiomyopathy on a secondary basis, the evidence must show that it was caused or aggravated by a service-connected disease or injury, namely, equilibrium dysfunction, claimed as dizzy spells.
The Veteran's claims file contains numerous VA and private medical records which show complaint of and treatment for heart-related symptoms since 2002. However, the only medical document in the record which discusses the nexus between the Veteran's hypertensive cardiomyopathy and his equilibrium dysfunction is a December 2009 QTC Medical Services examination conducted on behalf of VA. During this examination, the Veteran reported that he was diagnosed with strokes, and that his disorder had existed since 1996. He endorsed symptoms of shortness of breath, dizziness, and fatigue, which occurred all the time; however, he did have angina or syncope attacks. The Veteran also reported having congestive heart failure periodically, which had occurred three times previously; however, he did not have a history of heart attacks, rheumatic heart disease, or any surgery for his heart disorder. He indicated that he takes fluid pills, but no heart medication, to control his symptoms.
After conducting a physical examination, the examiner diagnosed the Veteran with hypertensive cardiomyopathy based upon the Veteran's history and medical records. Moreover, the examiner opined that the Veteran's hypertensive cardiomyopathy was not service-related to the service-connected equilibrium dysfunction. She reasoned that equilibrium dysfunction took place in 1976 when another individual hit the Veteran with a helmet, which had caused headaches and dizziness since that time. The Veteran's heart disorder took place in 1996 due to uncontrolled hypertension. She concluded that the current diagnosis of hypertensive cardiomyopathy is not service-related because medically it is impossible to relate hypertensive cardiomyopathy and equilibrium dysfunction. She further explained that equilibrium issues (as the Veteran described his situation) and hypertensive heart disease are not medically related. She reasoned that the Veteran described being hit on the head as the cause of the equilibrium issue, and this has nothing to do with his eventually developing hypertension and heart disease. The Board notes that although the examiner did not specifically address whether the Veteran's equilibrium dysfunction aggravates his hypertensive cardiomyopathy, the Board concludes that such a discussion is not required because the examiner determined that these two conditions are not medically related.
The Board acknowledges that the Veteran has submitted several lay statements contending that his hypertensive cardiomyopathy is related to his dizzy spells. Moreover, the claims file also includes lay statements from fellow service members, including an August 2008 statement, showing a belief that the military knew that the Veteran had blood pressure problems associated with these dizzy spells during service. Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. A layperson is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also 38 C.F.R. § 3.159(a)(2).
While the Board acknowledges the Veteran's contentions, the Board concludes that the medical evidence of record is of greater probative value in determining whether the Veteran's hypertensive cardiomyopathy was caused or aggravated by his service-connected disabilities. In this case, the December 2009 examiner's opinions are competent and they are the most probative evidence on the issue of etiology for hypertensive cardiomyopathy as secondary to his service-connected equilibrium dysfunction because of the examiner's expertise, training, education, proper support and rationale, and thorough review of the Veteran's self-reported history. Thus, the Board finds that the Veteran's hypertensive cardiomyopathy is not etiologically related to his equilibrium dysfunction, and hypertension was not aggravated by this service-connected disability.
Therefore, as the preponderance of the evidence is against service connection for hypertensive cardiomyopathy, the benefit of the doubt doctrine does not apply, and the Veteran's claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
Duties to Notify and Assist
VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. A notice letter was sent to the Veteran in August 2008, prior to the initial adjudications of the claim on appeal. Notice sent to the Veteran included descriptions of what information and evidence must be submitted to substantiate the claim, including descriptions of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claims to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b), and Kent v. Nicholson, 20 Vet. App. 1 (2006).
VA also has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim").
An October 2007 report of confidential social security benefit information indicated that the Veteran began receiving benefits in February 2007 from the Social Security Administration (SSA). The Board acknowledges that complete SSA records have not been obtained. However, there is no indication that these records are relevant to the current appeal, and in fact, the Veteran and his representative have not identified these records as being relevant to the claim on appeal. See id. (noting that VA has an obligation to secure SSA records if there is a reasonable possibility that the records would help to substantiate the veteran's claim.). Thus, under the circumstances of this case, a remand would serve no useful purpose. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided).
The Board finds that VA has satisfied its duty to assist by acquiring service treatment records and records of private and VA treatment. The duty to assist was further satisfied by several VA examinations, including an examination in December 2009, during which examiners conducted physical examinations of the Veteran, took down the Veteran's history, laid factual foundations for the conclusions reached, and reached conclusions and offered opinions based on the Veteran's history and examinations that are consistent with the record.
The Board notes that the Veteran's claim to reopen entitlement to service connection for hypertensive cardiomyopathy (previously claimed as a heart condition) has been granted, and thus, no additional duties of notice or assistance are required.
Based on the foregoing, VA has fully met its duties to notify and assist the claimant with the development of his claim, and thus, no further notice or assistance is required.
ORDER
New and material evidence having been received, the claim of entitlement to service connection for hypertensive cardiomyopathy (previously claimed as a heart condition) is reopened, and to that extent only, the appeal is granted.
Entitlement to service connection for hypertensive cardiomyopathy, to include as secondary to service-connected equilibrium dysfunction, is denied.
REMAND
Unfortunately, the Board must remand the issues of entitlement to a compensable rating for bilateral tinea pedis and onychomycosis of the feet and entitlement to service connection for tinnitus for additional procedural development.
When a Veteran has filed a notice of disagreement and there is no SOC on file for that issue, the Board must remand, not refer, the issue to the RO for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995); Archbold v. Brown, 9 Vet. App. 124 (1996).
In June 2014, the Veteran filed a notice of disagreement with a May 2014 rating decision, which denied an increased rating claim for bilateral tinea pedis and onychomycosis and a service connection claim for tinnitus. As the claims file does not contain an SOC addressing these issues, the Board must remand these matters to rectify the due process deficiency.
Accordingly, the case is REMANDED for the following action:
1. Readjudicate the claims of entitlement to a compensable rating for bilateral tinea pedis and onychomycosis of the feet and entitlement to service connection for tinnitus in light of all the evidence of record. If any benefit sought on appeal remains denied, an SOC should be furnished to the Veteran and his representative, and they should be afforded a reasonable opportunity to respond.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs